United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
action has been filed by the Plaintiff, pro se,
pursuant to 42 U.S.C. § 1983.Plaintiff, who at the time
this action was filed was a pre-trial detainee at the Horry
County (J. Reuben Long) Detention Center,  alleges
violation of his constitutional rights by the named
the named Defendants have filed motions to dismiss and/or for
summary judgment. As the Plaintiff is proceeding pro
se, Roseboro orders were issued by the Court on
December 11, 2018 and December 21, 2018, advising Plaintiff
of the importance of dispositive motions and of the need for
him to file adequate responses. Plaintiff was specifically
advised that if he failed to adequately respond, the
Defendants' motions may be granted, thereby ending his
case. After receiving extensions of time to reply, Plaintiff
filed several memoranda in opposition to the pending motions,
with attached exhibits, on March 27, 2019. Reply memoranda
were thereafter filed by the Defendants on April 3, 2019, and
April 23, 2019.
Defendants' motions are now before the Court for
alleges in his verified Amended Complaint that (at the time he
filed this action) he had been a pretrial detainee at the
Horry County Detention Center since July 12, 2016. Plaintiff
alleges that the Defendant Mediko is a private company that
(pursuant to contract with the Detention Center) provides the
medical staff for the Detention Center. The Defendant Joseph
Papotto is alleged to be the physician for the Detention
Center, while the Defendants Missy Vanduser and Latonya
Wineglass are alleged to be the Nursing Supervisor at the
Detention Center and the Mental Health Counselor at the
Detention Center, respectively. The Defendant Wayne Owens is
alleged to be the Detention Center Director, while the
Defendant Phillip Thompson is alleged to be the Sheriff of
Horry County (and therefore legally responsible for the
policies and operation of the Detention Center).
alleges that when he first arrived at the Detention Center he
was placed in a “detox cell” because he did not
have access to his “prescribed medications”.
Plaintiff alleges that after he was released from the detox
cell, he asked to see the doctor because he was having severe
pain in his shoulders, back, neck and knees. Plaintiff
alleges he saw Dr. Papotto and told him that he had had some
MRIs taken of his shoulders at the VA, and that Dr. Papotto
said he would get the MRIs. Plaintiff alleges he also Dr.
Papotto that he was on prescribed narcotic pain medications
for his “severe pain”, but that Dr. Papotto told
him the jail did not allow narcotic pain medications or any
controlled drugs. Instead, Dr. Papotto said he would
prescribe Plaintiff some muscle relaxers for his pain.
Plaintiff alleges he also told Dr. Papotto that he had been
prescribed Valium for panic attacks and anxiety, and that Dr.
Papotto told him he would have to see the mental health nurse
about that complaint. Plaintiff alleges that he subsequently
saw the mental health nurse (“Jane”) and told her
that he suffered from PTSD, panic attacks and anxiety, but
that “Jane” told him he could not have Valium
(the drug Plaintiff states he wanted) because the Detention
Center had a policy of “no controlled drugs”.
alleges that in September 2016 he told Dr. Papotto that the
drugs he had prescribed for him “didn't work”
and that he was still in a “lot of pain”, but
that Dr. Papotto again told him that he could not prescribe
“narcotics” for him as that was against Detention
Center policy. Plaintiff also complains that in September
2016 he came in contact with blood “that wasn't
mine”, and asked for an HIV test and a Hep C test.
Plaintiff alleges that Dr. Papotto ordered him an HIV and Hep
C test, but that he was subsequently told by the Defendant
Nurse Vanduser that they did not do hepatitis testing at the
Detention Center, and that the doctor “was not aware of
alleges that on November 22, 2016 he filed a grievance about
the delay in getting his MRIs from the VA and that he told
Dr. Papotto his shoulders, neck and back were causing him a
lot of pain and that he needed to see an orthopedist and be
given his “regularly prescribed pain meds”.
Plaintiff alleges that Dr. Papotto responded by telling him
that he did not need to see an orthopedic doctor and that his
shoulders “are not a medical emergency”.
Plaintiff alleges that he ultimately obtained his MRIs and
showed them to Dr. Papotto in December 2017 or January 2018,
and that Dr. Papotto told him that, according to the MRIs, it
“looked[ed] like [his] right shoulder might need to be
replaced[, ] but not for a few more years”, while his
left should would “need surgery also”. However,
Dr. Papotto again told him his shoulders were “not a
medical emergency” and that he did not need to see an
orthopedic doctor. Plaintiff alleges that instead, in August
2018, Dr. Papotto gave him shots in both shoulders.
alleges that on June 23, 2017 he was moved from a
single cell (B-3) to another cell (C-1) that had four inmates
to a cell. Plaintiff alleges this caused him to have
“bad panic attacks” and stress, causing his blood
pressure to “skyrocket”. Plaintiff alleges that
he spoke to the Defendant Wineglass in July and August 2017
and asked to be moved back to a single cell (B-3) due to his
PTSD and other mental health issues, and that Wineglass told
him she would move him back to a single cell. However, on
August 16, 2017 Plaintiff filed a grievance about not being
moved back to B-3, since he had not been moved. Plaintiff
alleges he also filed grievances about not getting blood
pressure checks or any medications for his high blood
pressure. Plaintiff alleges that around September 1, 2017, he
was told by Vanduser that Wineglass had told her that he was
to stay in C-1. Plaintiff further alleges that on September
14, 2017 Wineglass told him “I am not moving you,
because you wrote 2 grievances on me”. Plaintiff also
alleges that when Wineglass asked him to describe to her the
mental health issues Plaintiff alleged he was having, he told
her he would only speak to her in “sick call”,
because where they were “64 inmates [were] listening
alleges that in September 2017 he saw “Dr.
Parmar” (a psychiatrist) and told her about his mental
health issues and the problems he was having living with four
people in C-1. Plaintiff alleges that Dr. Parmar then told
Wineglass she wanted Plaintiff back in a single cell.
Plaintiff alleges he also still wanted to be placed on
Valium, but that Dr. Parmar was told by Wineglass that Valium
was not allowed at the jail. Plaintiff alleges that he saw
Dr. Parmar again on November 14, 2017 and asked her why she
had “changed her mind about moving me” (Plaintiff
alleges that Vanduser told him that the doctor had changed
her mind about him moving), and that Dr. Parmar told him that
she never changed her mind about moving him, and again told
Wineglass to move Plaintiff to a single cell. Even so,
Plaintiff alleges that he was not moved.
alleges that in November 2017 and December 2017 he filed
several grievances over Vanduser not giving him copies of his
blood work, including that his current blood pressure meds
were not working and had side effects. Plaintiff also alleges
he was supposed to see Dr. Parmar again in December 2017 for
a follow up, but that Wineglass was keeping him from seeing
Dr. Parmar because she and Vanduser had still not moved him
to a single cell like Dr. Parmar had ordered. Plaintiff
alleges that in January 2018 he again filed grievances about
his blood not being “taken care of” and about the
delay in his seeing Dr. Parmar again. Plaintiff also alleges
he asked Dr. Papotto if he had ever changed Dr. Parmar's
orders back in November 2017 “like Vanduser
said”, and he said he had not. Plaintiff alleges that
when he saw Dr. Parmar again on January 19, 2018, he told her
he was still having mental health and blood pressure issues
“caused by living with 4 people in a cell” and
that Vanduser and Wineglass were making excuses for not
following her orders to move him to a single cell. Plaintiff
alleges that Dr. Parmar again told Wineglass to move him to a
single cell. Plaintiff alleges that he was finally
transferred in January 2018, but to cell B-2 instead of B-3.
Plaintiff alleges that he wanted to be in a single cell by
himself, but still have Rec with other prisoners, but that
B-2 had him in a cell alone and also Rec alone. Plaintiff
also complains about not being allowed to watch tv or use the
phone “everyday” and other restrictions that were
placed on him while in this cell. Plaintiff alleges that his
complaints were met with “lies” by Vanduser and
alleges that in March 2018 he was seen by the sick call nurse
for complaints about his eyesight. Plaintiff alleges he was
told that they would not make an appointment with an eye
doctor for him until he had arranged to pay for it. Plaintiff
complains, however, that he should have been able to get free
outside medical care from the VA. Plaintiff alleges that when
he was called to medical for a nurse to give him an eye test,
he wrote back to “see when I would be seen by the
doctor”. Plaintiff alleges that Vanduser wrote back to
him that he would not be sent to the eye doctor since he
[Plaintiff] had not taken his eye test seriously. Plaintiff
alleges that he was only given an appointment with the eye
doctor after he agreed to pay the $89 fee for this
alleges that on February 12, 2018 he sent a letter to the
Defendant Mediko complaining about Vanduser and Wineglass and
about Dr. Papotto refusing to send him to an orthopedist.
Plaintiff complains that in response Mediko “did
nothing”. Plaintiff alleges that on February 24, 2018
he wrote a grievance to the Defendant Owens about jail
officers listening to his conversations with mental health
workers and nurses and doctors, and again complained about
this in a grievance dated August 1, 2018, but that
“nothing was done”. Plaintiff alleges that on
August 14, 2018 he then sent a letter to the Defendant
Thompson complaining about “his policies” of not
allowing Plaintiff his prescribed medications and not
allowing him to get his shoulders fixed, but that he
“never got a response”. Plaintiff seeks
injunctive relief requiring the Defendants to provide him
with the medical care he wishes, as well as monetary damages
against the Defendants. As attachments to his Complaint,
Plaintiff has submitted copies of various inmate grievance
and request forms in which he complains about the medical
care he is receiving at the jail, as well as a “To Whom
it may Concern” letter in which he reiterates many of
the allegations of his Complaint. See generally,
Plaintiff's Verified Complaint, with attached
support of summary judgment, the Defendant Joseph Papotto has
submitted an affidavit wherein he attests that he has been
the doctor for the Detention Center since September 2015.
Papotto attests that he also has a private practice, and that
he spends approximately two days a week at the Detention
Center assessing and treating inmates. Papotto has attached a
copy of Plaintiff's pertinent medical records to his
affidavit as an exhibit. Papotto attests that his first
involvement with the Plaintiff was when he was booked into
the Detention Center on July 12, 2016. Plaintiff underwent a
medical screening that indicated he was under the influence
of, or was withdrawing from, alcohol and/or drugs (Valium)
that he had been taking. See also Medical Records,
pp. 0234-0235. Papotto attests that he prescribed Plaintiff
Clonidine (for his blood pressure), Chlordiazepoxide (for
anxiety and acute alcohol withdrawal), Phenytoin (an
anti-seizure medication), Vitamin B1 and multi-vitamins.
Id., pp. 0221, 0224.
attests that Plaintiff first complained of back and shoulder
pain when he submitted two grievances on or about July
28th and 29th, 2016. Id., pp.
0188, 0491-0492. Papotto attests that he received notice of
Plaintiff's complaint on July 30, 2016, which was a
Saturday. Papotto attests that because he was not physically
present at the facility on weekends, he called in a
prescription for Ibuprofen 200 mg. Id., p. 0187.
Papotto attests that he thereafter evaluated the Plaintiff on
August 9, 2016, listened to his complaints and performed a
physical examination, and concluded that Plaintiff had
chronic shoulder pain but was not suffering from any acute
trauma. He prescribed Plaintiff Meloxicam (a non-steriodal
anti-inflammatory for pain) and Gabapentin (for neuropathic
pain). Id., pp. 0181-0182, 0185. Papotto attests
that Plaintiff next complained to him of shoulder pain two
and a half months later, on October 11, 2016. Id.,
p. 0173. Plaintiff reported at that time that
he had been treated at the VA hospital in Charleston, South
Carolina for chronic bilateral rotator cuff disorder. Papotto
attests that he increased the doses of Plaintiff's
Gabapentin and Meloxicam, and placed a request for
Plaintiff's prior medical records from the VA.
attests that the facility received Plaintiff's records
from the VA on October 23, 2016, which were initially
reviewed by a nurse. These records did not include any MRIs.
Papotto attests that Plaintiff's records indicated that
he had been taking Hydrochlorothiazide 12.5 mg. (for blood
pressure), and that after reviewing these records he
[Papotto] put in an order for Plaintiff to receive this
prescription. Id., p. 0156. Papotto further attests
that, meanwhile, on November 17, 2016 a nurse responded to
Plaintiff's grievance about his VA records, and relayed
to him that he [Papotto] had reviewed the records (but did
not indicate that the VA records did not include any MRIs).
Id., p. 0510. Papotto attests that Plaintiff had
also submitted a grievance on November 4, 2016 about the
upcoming expiration of his Flexeril (a muscle relaxant)
prescription, and that in response he refilled
Plaintiff's Flexeril prescription. Id., pp.
0151, 0508. Papotto also renewed Plaintiff's Gabapentin
prescription on January 10, 2017.
attests that January 12, 2017 Plaintiff submitted a grievance
complaining about neck and shoulder pain. Id., pp.
0256-0257, 0517. Papotto attests that he thereafter examined
the Plaintiff on January 17, 2017, and found that his
condition was unchanged and that he had no acute injuries.
Papotto attests that he changed Plaintiff's Flexeril
prescription to a combination of Tizanidine (for muscle
spasms) and Tylenol, and also increased the dosage of
Plaintiff's Gabapentin. Id., p. 0256. He also
ordered Plaintiff an extra blanket so that he could elevate
his head while sleeping.
attests that Plaintiff submitted another grievance on
February 2, 2017, requesting prescriptions for Opana and
Valium, which he had been taking prior to his incarceration.
Id., pp. 0247, 0525. Plaintiff was placed on the
sick call list, and Papotto attests that he met with
Plaintiff on February 14, 2017. Papotto attests that
Plaintiff was continuing to request that copies of his prior
MRIs be obtained from the VA, and also requested a referral
to an outside orthopedist. Papotto attests that he denied
this request because, based on his clinical assessment of the
Plaintiff, he did not need to see an orthopedist. Papotto
attests that Plaintiff also requested narcotics, which
inmates at the Detention Center are not given due to the risk
of abuse and addiction. Even so, Papotto changed
Plaintiff's Tizanidine prescription back to Flexeril to
better address Plaintiff's symptoms. Papotto attests that
Plaintiff made no additional complaints to him about pain
during the next five months,  and that he renewed
Plaintiff's prescriptions several times during that time
attests that on July 21, 2017 Plaintiff complained that his
pain medications had not been refilled. Id., p.
0549. Papotto attests that he reviewed Plaintiff's
records, and prescribed him some Naproxen 500 mg (a
non-steriodal anti-inflammatory). Id., p. 0311.
Papotto attests that he then examined Plaintiff again on
August 10, 2017, and that based on his physical examination
and Plaintiff's complaints, he ordered another round of
Tizanidine and 800 mg of Gabapentin. Id., 0306,
0308, 0311. He also told Plaintiff that the facility would
again attempt to obtain copies of any MRIs from the VA.
Thereafter, Plaintiff submitted another grievance on
September 16, 2017 complaining about “liver
pains” and worsening back and shoulder pain. However,
when Plaintiff was seen by the nurse during sick call the
following day (September 17, 2017), instead of discussing
back and shoulder pain, Plaintiff talked about sinus related
complaints and did not mention any back or shoulder pain.
Id., pp. 0338-0339, 0571.
October and November 2017, Plaintiff was treated for pain in
his right upper quadrant. Papotto attests that he ordered an
ultrasound that showed a fatty liver and a benign right
kidney cyst. At a follow up visit on November 2, 2017,
Plaintiff's vital signs were stable and his physical
examination was unremarkable. Papotto attests that he
strongly suspected that Plaintiff was malingering.
Id., pp. 0323-76, 0378. At Plaintiff's request,
Papotto renewed his prescription for Tizanidine on November
13, 2017, and his prescription for Gabapentin on November 14,
2017. He renewed Plaintiff's prescription for Tizanidine
again on December 23, 2017. Id., pp. 0346, 0369,
Papotto attests that he next saw the Plaintiff for ongoing
complaints of bilateral shoulder pain on January 11, 2018.
Id., p. 0416. Papotto attests that Plaintiff had
obtained his prior MRIs from the VA, which showed that
Plaintiff had tendinopathies, small tears, and moderate
degenerative joint disease in his right shoulder. Papotto
attests that he explained to the Plaintiff that these were
non-emergent problems and that, as a result, he did not need
a referral to an outside orthopedist. Papotto attests that he
did, however, approve an extra mat for the Plaintiff. Papotto
attests that Plaintiff thereafter made no complaints of
shoulder pain over the next six months.Plaintiff did make
several requests for prescription refills for his Tizanidine
and Gabapentin during this period, which Papotto attests he
ordered. Id., pp. 0384, 0397, 0434. Papotto attests
that on April 25 2018 Plaintiff reported that Tizanidine was
effective and that he wished to continue it, so he [Papotto]
renewed Plaintiff's prescription that same day.
Id., pp. 0436-0437.
attests that on July 10, 2018 he met with the Plaintiff for
complaints of tenderness and decreased range of motion in
both shoulders. Id., pp. 0475-0476. Papotto attests
that he administered a pain medication via injection into the
right shoulder and increased Plaintiff's dosage of
Tizanidine. However, he again denied Plaintiff's request
for referral to an outside orthopedist because he assessed
Plaintiff's shoulder pain as a stable, non-urgent,
chronic condition that was responding to the treatment he was
prescribing. Papotto attests that he thereafter administered
another shot to Plaintiff's right shoulder on August 2,
attests that, as evidenced by Plaintiff's (attached)
medical records, he never ignored Plaintiff's complaints
of pain. To the contrary, he prescribed Plaintiff several
different medications in an attempt to minimize or eliminate
his chronic pain. As reflected in Plaintiff's medical
records, he also continued to review Plaintiff's progress
and complaints each time he was due for a medication refill,
even on weekends. Papotto attests that based upon his
education, experience and training, it was his clinical
determination that Plaintiff did not need a referral to an
outside orthopedist, and that if his periodic examinations
had ever suggested differently, he would have been referred.
Papotto further attests that it is not his custom or practice
to prescribe a medication simply because a patient desires
it, particularly when the medication is a potentially
addictive-forming narcotic, and that based on Plaintiff's
subjective complaints and his [Papotto's] physical
assessments, Plaintiff was a generally healthy male with no
acute injuries and did not need narcotic pain medication.
Papotto attests that he saw the Plaintiff each time he
complained of worsening pain and prescribed treatment plans
that appeared to successfully target his symptoms.
See generally Papotto Affidavit, with
attached Exhibits [Medical Records].
Defendant Melissa Van Duser has also submitted an
affidavit wherein she attests that she is a registered nurse
(RN), and that she works at the Horry County Detention Center
as the Health Services Administrator (HSA), a position she
assumed in July 2017. Van Duser attests that, prior to that
time, she had been employed at the Detention Center since
June 2015 as the Director of Nursing. Van Duser attests that
as HSA, she coordinates the medical services provided by the
physicians and nurses at the facility, and also reviews and
responds to inmate grievances and patient care issues. Van
Duser attests that she has attached to her affidavit a copy
of Plaintiff's pertinent medical records.
Duser attests that when an inmate has a health care related
question or wishes to be seen by medical staff, they submit a
request or grievance through a kiosk in the inmate's
common area. The grievance is then processed and answered by
members of the medical staff, including herself, who triage
the patient and determine how best to meet the inmate's
needs. This process typically involves scheduling the inmate
for an appointment with the doctor or nurse, following up on
doctor's orders, and verifying that medications are being
received and taken. Van Duser attests that between July 21,
2016 and November 4, 2018, Plaintiff submitted approximately
182 grievances, most of which she received and answered.
See attached medical records, pp. 0489-0670.
Duser attests that she answered two grievances submitted by
the Plaintiff on November 16, 2016 and November 17, 2016
relating to Plaintiff's request for hepatitis C testing.
Id., pp. 0510-0511. Van Duser attests that in
response to these grievances, she reviewed Plaintiff's
medical records and observed that on October 11, 2016 Dr.
Papotto had noted that Plaintiff had requested testing for
hepatitis C and HIV. Id., p. 0173. Van Duser attests
that she answered these grievances by explaining that the
detention facility did not order hepatitus C tests, while the
outside vendor the facility used for HIV tests (Little River
Medical Center) had re-scheduled his HIV test for the
following week. Id., pp. 0510-0511. Van Duser
further attests that in response to grievances submitted by
the Plaintiff on November 17, 2016 and November 21, 2016,
complaining that he had not been seen by an outside
orthopedist, she reviewed Plaintiff's medical records
from before his admission to the jail, which included records
from the VA Hospital in 2015, and explained to the Plaintiff
that because the injury to his shoulder was non-emergent and
pre-dated his admission to the facility, any surgery would
have to be scheduled for after his release. Id., pp.
respect to Plaintiffs allegation that Van Duser refused to
follow and/or interfere with Dr. Parmar's order that he
be moved to a single cell, and that she “lied about
it”, Van Duser attests that when Plaintiff saw Dr.
Parmar on November 15, 2017, she did not order that he be
transferred to a single cell. Rather, Dr. Parmar wrote
“he is ok for now in the cell he is in”.
Id., p. 0366. Van Duser attests that she also
answered Plaintiffs November 1, 2017 on November 20, 2017
grievances requesting a tranfer by explaining to him that Dr.
Papotto, as the Facility Medical Director, could overrule any
orders by the psychiatrist, although in this instance that is
not what happened, since Dr. Parmar did not order a change in
Plaintiffs cell. Id., p. 0596. As for Plaintiffs
complaint that Van Duser refused to provide him with copies
of his blood work, Van Duser attests that she and the
Plaintiff had multiple communications on this issue between
November 11 and 17, 2017, with her explaining to him each
time that the facility policy is not to release paperwork
containing protected health information to inmates during
incarceration. Van Duser attests that she did not create this
policy, but that it was her job to explain it to the
Plaintiff, which she did. Id., pp. 0590-595.
respect to Plaintiffs allegations about not receiving his
blood pressure medications in November, Van Duser attests
that Plaintiff submitted a grievance asking for blood
pressure checks on August 25, 2017. Id., p. 0560.
Van Duser attests that she responded to the Plaintiff that
his blood pressure readings had been in the normal range and
thus he did not need further checks. Thereafter, on August
28, 2017, Plaintiff submitted another grievance requesting
more blood pressure checks. This time, she responded that she
had obliged and reordered his twice weekly blood pressure
checks. Id., pp. 0560-0561. Van Duser attests that
she did not receive any additional grievances about blood
pressure medications or concerns from the Plaintiff until
November 27, 2017, when he submitted a grievance asking when
he would been seen for a change in his blood pressure
medication due to his having “dry mouth”. Van
Duser attests that Plaintiff did not complain that the
medication was not working or that his blood pressure was too
high, and that she answered this grievance by telling him
that he was on the list to see the doctor. Id., pp.
respect to Plaintiff's allegations that she failed to
place him in a single cell and lied to support her actions,
Van Duser attests that when Plaintiff saw Dr. Papotto on
January 11, 2018, he noted (among other things) that
Plaintiff wished to be moved to the medical pod, telling Dr.
Papotto that the psychiatrist had made this recommendation.
Id., pp. 0416. Dr. Papotto wrote in his treatment
notes that he reviewed the psychiatrist's records, but
that it was “unlikely [Plaintiff] needs to be moved
since he remains stable both medically and
emotionally”. Id. Van Duser attests that
Plaintiff was thereafter seen by the psychiatrist on January
19, 2018, who wrote in her notes “Please do not have
any cell mate for this patient because of PTSD and
patient's fear of hurting others because of PTSD related
symptoms”. Id., pp. 0405-0406. Based on this
directive, on January 22, 2018 Plaintiff was placed on
“house alone/rec alone” by the nurse at the
facility. Van Duser attests that this designation means that
the inmate is not to come into contact with other inmates,
typically due to psychiatric issues that make the inmate a
potential danger to themself and/or others. Id., pp.
0399, 0401. However, Plaintiff then submitted a grievance
that same day (January 22, 2018) asking that he be allowed to
be around others during recreational time. Id., p.
0617. Van Duser attests that she reviewed the psychiatrist
notes, and responded to the Plaintiff the following day that
public recreational time was not allowed for in the
psychiatrist's order and that it was beyond her authority
to change the order. Van Duser attests that Plaintiff
thereafter submitted several additional grievances related to
this order, and that she answered each one to the best of her
ability after reviewing and discussing the order with the
psychiatrist. Id., pp. 0618-0621. ...